Tuesday, July 30, 2013

SLAPPs and the Epistemology of Nothingness

Trapp v. Neimann, E054908 (D4d2 July 24, 2013)In a seemingly ordinary analysis on an
anti-SLAPP motion, the court finds that all five causes of action in a
complaint arise from litigation related activity and that they cannot succeed
under the Civil Code § 47(b) litigation privilege. But a question is begged.
Does a cause of action arise from protected activity when it arises from nothing
at all?

After having his home foreclosed upon in
a non-judicial foreclosure and being sued in a series of unlawful detainer
actions, plaintiff sued the bank and its lawyers on a number of theories based
on the foreclosure and the filing of the UD cases. The lawyers filed an
anti-SLAPP motion, arguing that the causes of action arose from the protected
activity of filing the UD cases, and that the plaintiff could not show merit,
given that the lawyers’ conduct was privileged under Civil Code § 47(b), as
protected litigation activity. The court granted the motion as to some
causes of action, but denied as to the causes of action it found to arise from
the foreclosure, relying on Garretson v. Post, 156 Cal. App. 4th 1508
(2007), which held that non-judicial foreclosures are not “protected activity”
under Code of Civil Procedure § 425.16(e).

The court of appeal reversed, in part,
holding that all of the causes of action should have been dismissed as
SLAPPs. The court—in a very brief analysis—rejected the plaintiffs’ Garretson
argument, holding that even though several of the causes of action were based
on the foreclosure, the plaintiffs admitted that the lawyers did not
participate in the foreclosure, and thus “the only way to keep [the lawyers] in
this action is through their representation of [the bank] in the UD
actions.” Since a cause of action that partially arises from protected
activity satisfies § 425.16(e). The court thus held that all of the causes of
action arose from protected activity.

Moving quickly through the second prong
of the anti-SLAPP analysis, the court found that because the allegations
against the attorneys were based on their representation of the banks in the UD
cases, their conduct was privileged under the litigation privilege in Civil
Code § 47(b). Given the privilege, plaintiffs could not prevail, so the anti-SLAPP motions should have been granted in full.

Finally, the court addressed an issue
regarding the timeliness of the anti-SLAPP motion, which, under § 425.16(f), “may
be filed within 60 days of the service of the complaint or, in the court's
discretion, at any later time upon terms it deems proper.” (emphasis
added). There was some dispute over whether defendants were served more
than sixty days before the motion was filed. But the court held it did
not matter, because even if the motion was a day or two late, the trial court
had the discretion to accept and decide the motion after the deadline.

Reversed in part.

I'm not sure about this one. The
opinion was originally issued as a unpublished decision, but it was published
at the request of one of the parties under Rule of Court 8.1105(c)(3). I’m all for more published opinions, but the analysis here seems a little
rushed. In doing so, it glosses over an issue that is, at minimum,
philosophically interesting, if not particularly momentous as a point of civil
procedure.

If, as the opinion suggests, four of the
five causes of action arose entirely from the foreclosure and not the UD cases,
it is unclear how naming the lawyers in those causes of action turned them into
causes of action arising from protected activity. The real issue appears
to have been that the causes of action addressing the foreclosure failed to
allege that the attorneys did anything—they were just lumped in with
“Defendants,” used generically to refer to both the attorneys and the banks. But were that the case, the issue was not that the causes of action arose from
the attorneys’ protected activity, it was that, as to the attorneys, the causes
of action arose from nothing at all. That is an entirely valid
basis for a demurrer. But it seems questionable to me that a cause of
action based on nothing can arise out of protected activity sufficient to bring
the claim within the ambit of the anti-SLAPP remedy.

That said, I could see it the other way
too. Suppose a complaint’s only factual allegation about a particular defendant
is a generally allegation in the body of the complaint that the defendant spoke
a public meeting. Then, that defendant is named in a cause of action for
conversion, which as is typical, incorporates all of the general allegations by
reference, but makes no further allegations about the defendant. One
could say that the conversion must arise out of the defendant’s speech, even if
the speech logically has nothing to do with conversion, since the cause of
action must arise from something and that’s all the plaintiff gave us to
work with. That seems to be what the court saying here, at least
implicitly.

So I suppose the question comes down to: Must every cause of action arise from something? I don't know. Maybe it's turtles all the way down . . . .